Dismissing Past Convictions (Expungement)

California Penal Code 1203.4 and
1203.4a permit most people convicted of California crimes to have their convictions
dismissed after—sometimes long after—their conviction or guilty plea.

Although this is commonly called an “expungement,” as 1203.4
dismissal is actually more powerful. Rather than having your prior conviction
“erased,” instead, your
California expungement attorney asks the court to permit you to withdraw your guilty plea, or vacate your
conviction, and replace it with a dismissal of charges.

Petition.

To petition for 1203.4 dismissal, a
California expungement attorney will first collect information about the prior conviction. It is important
to assure that all relevant information is placed before the judge so
that all charges are dismissed. This petition may include information
about the offense, the probationer, letters of recommendation, proof of
compliance with the terms of probation, and any other material that may
assist the court in making a decision.

If your conviction resulted in a probation term, you must first complete
your probation before seeking dismissal under
Penal Code 1203.4. However, you may seek
early termination of probation under
Penal Code 1203.3 and dismissal simultaneously. Thus the judge would grant early termination
of probation and dismissal at the same moment.

You may not obtain dismissal where you were sentenced to a term in state
prison, even if that sentence was suspended.
People v. Borja (App. 1 Dist. 1980) 167 Cal.Rptr. 813, 110 Cal.App.3d 378. However, if you served time instead in county jail or only served your
penalty on probation, you are eligible for dismissal. Former state prisoners
should instead seek to vacate their conviction or seek a certificate of
rehabilitation or pardon.

Your
California expungement attorney will decide under which statute you should seek dismissal. Generally,
1203.4 is for people who obtained a probationary sentence for a felony or a misdemeanor.
By contrast,
1203.4a is for people who did not serve any probation for a misdemeanor or an
infraction. As of
January 1, 2011, infractions other than those in the Vehicle Code are dismissible.

What Does Dismissal Accomplish?

A dismissal under 1203.4 or 1203.4a vacates your conviction—whether
it be by guilty plea or conviction at trial—and replaces it with
a dismissal. Thus your criminal record will show the charge was dismissed.
Files are not destroyed; however, after 10 years the court may destroy
records of convictions under
Government Code 68152.

The probationer seeking early termination of probation must give 15 days
notice to the
prosecuting attorney on the underlying case.[1] This is usually the local district attorney or in rare cases the
California Department of Justice. If the prosecuting attorney does not show up or object to the petition,
they may not later reopen the issue or appeal.[2]

Under California law, many crimes can be prosecuted or sentenced as either
a felony or a misdemeanor.[3] California attorneys call these crimes “wobblers.” Even if
someone is convicted or pleads guilty to a felony, if that crime is a
wobbler the crime can later be reduced to a misdemeanor. California expungement
lawyers will often seek to reduce the crime to a misdemeanor at the same
time as a petition for early termination of probation. Ideally, someone
serving felony probation on a wobbler will seek early
termination of probation,
reduction to a misdemeanor, and
expungement. This can be accomplished in a single hearing or several over time.

A petitioner for dismissal may be required to reimburse the court, whether
or not the petition is granted and the records are sealed or expunged.
The court determines this rate, but it may not be more than $150.[5] A petitioner may seek a fee waiver if they cannot afford this fee.